An "Informed Decision" on Ground-Level Ozone

By Liz Borkowski

When EPA Administrator Stephen Johnson announced last week that the agency would lower the limit for ground-level ozone pollution, he acknowledged that the current standard of 0.08 parts per million was insufficiently protective of public health. This was an appropriate rationale for changing the limit, since the EPA is required to establish air quality standards exclusively on the basis of health consideration. The proposal of 0.07 â 0.075 ppm isnât as low as the 0.06 â 0.07 ppm that the agencyâs Clean Air Scientific Advisory Committee recommended (PDF), but at least itâs an improvement.

On the other hand, the EPA press release states that âEPA also is taking comments on alternative standards within a range from 0.060 ppm up to the level of the current 8-hour ozone standard, which is 0.08 ppm.â (Comments will be accepted for 90 days.) The Washington Post reports on the reasoning:

Johnson said research has clearly shown that allowable levels of ozone can lead to disease but added: âI recognize that others donât agree with that, and I want to provide an opportunity for them to provide comments on which we can make an informed decision.â

So, although Johnson knows that currently allowed ozone levels can lead to disease, heâs willing to hear alternative proposals â including that the rule not change â from those who disagree.

Clean Air Watch president Frank OâDonnell, quoted in the Associated Press article on the EPA proposal, suggests that ârecent polluter visits to the White House helped shape this decision.â Thatâs a familiar enough story that some of us might be tempted to dismiss it as more of the usual, but Matt Madia at Reg Watch explains why itâs important. First of all:

Under Executive Order 12866, agencies are required to submit to the White House Office of Information and Regulatory Affairs (OIRA) "significant" proposed rules for a regulatory review period. During the review of the ozone standard, the perfect storm of political and corporate interests converged in the White House's central review office.

One problem is OIRA's new administrator, Susan Dudley. President Bush recess appointed Dudley this April. Bush circumvented the Senate instead of facing further opposition from public interest groups like OMB Watch who opposed Dudley because of her fundamental disdain for federal regulation.

Dudley's past work has exhibited particular hostility towards EPA's ozone standard. Dudley has actually argued ground-level ozone is beneficial, citing the widely-discredited claim that it protects humans from skin cancer. When EPA was setting the ozone standard in 1997, Dudley submitted comments saying "EPA's proposal may harm public health and welfare, regardless of cost."

Critics also feared Dudley would provide industry lobbyists undue access during the review process. During the review of the ozone standard, those fears manifested. OIRA met twice with industry lobbyists including representatives from the Chemical Industry Institute, the Auto Alliance, and the Edison Electric Institute. These industry groups have a long record of opposing more stringent air pollution regulation.

The White House wasn't done injecting political influence into the review of the ozone standard. In the second OIRA meeting with industry representatives, an official from the Office of the Vice President made an unusual appearance. In 2002, President Bush officially ended the role of the Vice President in the rulemaking process. Since then, a representative from Vice President Dick Cheney's office has been present in only five of 482 regulatory review meetings.

Executive Order 12866, as amended by Bush earlier this year, gives the president an unprecedented amount of control over regulatory agenciesâ activities. Cheney, as the new Washington Post series describes, has taken a much more active role than past vice presidents in shaping policy. Madia reminds us, though, that there are limits to what we can learn about how OIRA and the Vice Presidentâs office shape policy on ground-level ozone and a host of other issues:

Unfortunately, the corrupting influence of Dudley, industry and the Vice President's office is mere speculation. Because the rulemaking process suffers from such a dearth of transparency, we may never know the exact influence of these players on the final outcome.

This situation highlights two particularly opaque spots in the transparency of the rulemaking process. First, the public is not readily afforded the opportunity to view EPA's pre-review proposal. While we do know EPA staff scientists and two advisory committees suggested markedly tighter standards, we do not know what agency brass decided to submit for the White House's reviewing pleasure. Subsequently, we do not know what person or persons tinkered with scientific conclusions in order to produce this weak proposal.

Second, we do not know what OIRA, industry reps and the Vice President's staffer discussed during review meetings. OIRA maintains on its website a log of all meetings which identifies which rule was discussed and who attended. However, although E.O. 12866 requires OIRA disclose "the subject matter discussed" during these meetings, that information is rarely revealed. Equally unsettling, an EPA official was not present during the first review meeting. Dudley has refused to comment on why EPA was absent.

Johnson is a career scientist whose nomination to head EPA won praise from environmental groups. It appears that he understands the need to lower ground-level ozone limits to protect public health. As in so many other cases, though, science and understanding may not be enough.

Liz Borkowski works for the Project on Scientific Knowledge and Public Policy (SKAPP) at George Washington Universityâs School of Public Health and Health Services.